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DIRECTV, Inc v. Walsh

February 13, 2008

DIRECTV, INC. PLAINTIFF
v.
EUGENE MICHAEL WALSH JR. DEFENDANT



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

This matter is before the Court on Plaintiff DIRECTV, Inc.'s ("DTV") Motion for Summary Judgment. (Dkt. Entry 163.) DTV filed a complaint against Defendant Eugene Michael Walsh Jr. alleging Mr. Walsh unlawfully intercepted DTV's encrypted satellite television signal and manufactured, assembled, or modified pirate access devices, in violation of the Federal Communications Act, 47 U.S.C. § 605(a) and § 605(e)(4); the Electronic Communications Privacy Act, 18 U.S.C. § 2511(1)(a); and the Pennsylvania anti-piracy statute, 18 Pa. Cons. Stat. Ann. § 910(a).*fn1 (Dkt. Entry 1.) DTV is seeking statutory damages and injunctive relief, plus attorney's fees and litigation costs.

DTV's motion is unopposed. Mr. Walsh was precluded from opposing DTV's claims as a sanction for his failure to comply with an Order issued by this Court compelling responses to DTV's discovery requests. Nevertheless, DTV must still demonstrate that summary judgment in its favor is appropriate. For the reasons that follow, the Court finds summary judgment is appropriate and will grant DTV's motion. The Court will award $23,000 in statutory damages, $32,584 for attorney's fees, and $21,488.90 for litigation costs, and will issue an injunction permanently enjoining Mr. Walsh from violating the anti-piracy statutes.

I. BACKGROUND

A. Procedural Background

On January 13, 2003, DTV filed a complaint against nine defendants, including Mr. Walsh. (Dkt. Entry 1, ¶ 23.) The complaint asserted six claims, but only four claims -- to redress violations of 47 U.S.C. § 605(a), 47 U.S.C. § 605(e)(4), 18 U.S.C. § 2511(1)(a), and 18 Pa. Cons. Stat. Ann. § 910(a) -- remain against Mr. Walsh. This action was docketed originally to No. 3:CV-03-0075 and assigned to the Honorable A. Richard Caputo. The matter was reassigned to the undersigned on May 12, 2004, (Dkt. Entry 67), and on April 25, 2005, the claims against Mr. Walsh were severed from the original action and assigned to the present docket, No. 3:CV-05-0826. (Order of Court, Dkt. Entry 123.)

After the complaint and summons were finally served upon Mr. Walsh -- which, due to his defiance, required three attempts and an evidentiary hearing to establish his identity -- the parties engaged in discovery. DTV served Mr. Walsh with interrogatories, requests for production of documents, and requests for admissions. Mr. Walsh failed to respond, nor did he make initial disclosures required by Fed. R. Civ. P. 26. DTV filed a motion to deem admitted its requests for admissions and to compel Mr. Walsh's initial disclosures and responses to discovery. (Dkt. Entry 115.) The Court granted the motion; the requests for admissions were deemed admitted, and Mr. Walsh was afforded ten days to make his initial disclosures and respond to DTV's discovery requests. (Order of Court, June 7, 2005, Dkt. Entry 125.) Mr. Walsh failed to comply with this Order, which prompted DTV to file a motion for sanctions. (Dkt. Entry 126.) The Court granted DTV's motion and "prohibited [Mr. Walsh] from opposing Plaintiff's claims and . . . prohibited [him] from introducing any evidence in support of his defenses." (Order of Court, August 10, 2005, Dkt. Entry 131, at 2.)

On June 25, 2007, DTV filed a Motion for Summary Judgment, (Dkt. Entry 163), a statement of material facts, (Dkt. Entry 163-3), and a brief in support of its motion. (Dkt. Entry 164.) The following day, DTV filed supporting exhibits. (Dkt. Entry 165.) Because of the sanction order, the motion is unopposed and, therefore, ripe for disposition.

B. Factual Background

DTV distributes satellite television programming to residential and business customers across the country. (Whalen Decl., Ex. 1 to Pl.'s Br. Supp. Mot. Summ. J. ("Pl.'s Br. Supp."), Dkt. Entry 165-2 ¶¶ 4-5.) DTV offers the programming only on a subscription and pay-per-view basis, and it encrypts, or digitally scrambles, its satellite broadcast to guard against unauthorized viewing. (Id. ¶ 5.) A typical system consists of a satellite dish, a receiver (or "integrated receiver/decoder"), and an access card. (Id.) The access card, when inserted into the receiver, allows the receiver to decrypt the programming the subscriber has purchased. (Id. ¶ 6.) In recent years, devices have been developed to circumvent the necessity of a valid access card, allowing "pirates," or users of such devices, the ability to decrypt and receive programming without authorization or charge.

Mr. Walsh was a DTV subscriber from March 10, 2000, through April 19, 2001. (Pl.'s Statement of Material Facts ("SMF"), Dkt. Entry 163-3, ¶ 3.) His service was disconnected after he reported to DTV that his satellite equipment was stolen from his commercial vehicle. (Id. ¶ 4.) Although the alleged theft occurred on March 16, 2001, Mr. Walsh waited until April 19, 2001, to contact DTV. (Id.) He declined a subsequent invitation from a DTV representative to reactivate his subscription. (Id. ¶ 5.) Despite the absence of an open account, however, Mr. Walsh viewed DTV's satellite programming at his residence from April, 2001, through at least February 16, 2005. (Id. ¶ 6.) As demonstrated by the record, Mr. Walsh's viewing was unauthorized and facilitated by his use of pirate access devices.

DTV first became aware of Mr. Walsh after it executed writs of seizure at a mail shipping facility used by distributors of pirate access devices. (Whelan Decl. ¶ 29.) DTV obtained records that revealed Mr. Walsh purchased pirate access devices from Vector Technologies ("Vector") and Canadian Security and Technology ("CanSat"), both of which market their devices for the unlawful interception of DTV's satellite signal. (Id. ¶¶ 30-31.)

According to the records, on April 3, 2001, Mr. Walsh ordered a "Vector Super Unlooper w/ X Code." (SMF ¶ 7.) On April 25, 2001, he ordered from CanSat an "MK1 Programmer." (Id. ¶ 8.) These devices are marketed as allowing the unauthorized reception of DTV's programming.*fn2 (Id. ¶ 11.)

In addition to the two devices purchased from Vector and CanSat, DTV's investigation uncovered evidence that Mr. Walsh purchased three additional pirate access devices and possessed eight other pirate access devices. Mr. Walsh maintained an account with PayPal, Inc., an online payment services company that allows its account holders to send or receive money electronically. (Id. ¶ 18.) DTV subpoenaed Mr. Walsh's account records, which indicate he purchased three alleged pirate access devices from a company called Protronics: (1) a "Boot Reader Circuit Board," on or about July 17, 2001; (2) a "Repair Station/Loader Circuit Board," on or about October 21, 2001; and (3) a "Board Order," on or about July 14, 2002. (SMF ¶ 19.) There is no evidence, however, that Mr. Walsh actually received and possessed these devices or used them to intercept DTV's satellite programming.

Regarding Mr. Walsh's alleged possession of eight pirate access devices, DTV relies on Mr. Walsh's messages that he posted on Websites and forums. Mr. Walsh was a member of several Internet forums, chat rooms, and bulletin boards where satellite piracy enthusiasts meet to share information to assist one another in the surreptitious interception of DTV's programming. (Id. ¶ 20.) He posted on these sites a substantial number of messages under the username, "Busmike," which were captured by a computer forensics expert. (Id. ¶ 21; see also Walker Decl., Ex. 4 to Pl.'s Br. Supp., Dkt. Entry 165-5, ¶ 10.)*fn3 DTV identifies several messages, all posted between February and November, 2001, that purport to reveal that Mr. Walsh possessed the following devices: an emulator*fn4 ; a bootstrap board; a turbo unlooper; three programmers; a Linux emulator; and a Timeshift bootloader (also known as a programmer). (SMF ¶ 22.) Except for the messages related to the bootstrap board and Linux emulator -- in which the contents of those postings clearly indicate that Mr. Walsh was not referring to his own devices, (see Ex. C to Walker Decl., Dkt. Entry 165-5, at Bates 000054; id. at Bates 000091) -- these messages do demonstrate Mr. Walsh's possession of six additional pirate access devices.

Finally, DTV submitted evidence that Mr. Walsh assisted others in the interception of satellite programming by setting up piracy systems in their homes. (SMF ¶ 26.) Mr. Walsh also used his equipment to fix, clean, and unloop DTV access cards. (Id. ¶ 28.) Finally, Mr. Walsh assembled a pirate access device called a 2313 programmer. (Id. ¶ 24.)

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment should be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if proof of its existence or nonexistence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. Cont'l Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). The moving party has the burden of ...


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